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HomeMy WebLinkAbout4.576 Original Contract <t. 5 7lJ; CONTRACT For Creation of Public Art Work "Avenue of the People" THIS CONTRACT is made and entered into by and between the CITY OF PORT ANGELES, Washington, a municipal corporation (hereinafter referred to as "CITY") and BOB STOKES, an individual having his principal place of business at 118-1/2 E. Front, Port Angeles, Washington 98362 (hereinafter referred to as "ARTIST"). 1. PURPOSE This Contract states the terms and conditions under which ARTIST shall design, fabricate and install an art project called "Avenue of the People." 2. DESCRIPTION OF SERVICES ARTIST's services hereunder shall include, but shall not be limited to, the following: A. DESCRIPTION OF ARTWORK. The ARTIST will create, install and document the following work of art, hereinafter referred to as the "Artwork." TITLE: (WORKING TITLE) "Avenue of the People" DIMENSIONS: Approx. Life Size People MEDIA: Welded Steel DESCRIPTION OF ARTWORK: Abstract Personality Figures PERMANENT LOCATION. The permanent location for the Artwork shall be: See Attachment "A" B. ARTIST shall work closely and cooperate with the CITY in order to fulfill the purposes of this Contract. The Artist shall create the Artwork in accordance with the proposed design, as approved by the CITY. Any change in scope, design, or material that significantly alters the original and approved concept and design of the artwork or affects installation, scheduling, site preparation, or maintenance for the Artwork shall require prior review and written approval. Approval of the design shall be in writing addressed to Artist. The parties shall attempt to resolve all disputes and questions of interpretation arising under this Contract. If the parties are unable to agree, then such issues shall be submitted for mediation to the Peninsula Dispute Resolution Center. Such mediation shall be non-binding and shall not prevent either party from seeking legal redress. Venue shall be as set forth in Paragraph 16, below. c. DOCUMENTATION AND RECORDS. Upon installation of the Artwork, and before final payment shall be made, the Artist shall furnish the City, a final report, and a completed Documentation Worksheet including: a) four good quality images (slides or jpegs), two each of two views of the Artwork, b) two black and white glossy photographs of the Artwork at least 4 x 6 inches capable of reproduction for print media, c) a written technical - I - description of the Artwork, d) written maintenance instructions for the work, and e) a record of all persons furnishing labor and material for the work, and lien waivers from any persons furnishing labor and material for the work, and lien waivers from any persons furnishing labor and/or materials incorporated into the Artwork, for review and approval. As an expressed condition of this Contract, ARTIST shall design and install the ARTWORK so that it can be utilized for display and also provide photographs, models, drawings or other representation of the Artwork suitable for promotional purposes. ARTIST shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies in the ARTIST'S performance. D. ARTIST shall be responsible for any damage to the ARTWORK that may occur due to fire, explosion, theft, vandalism, flood, power failure, transit or any other cause until ARTWORK has been delivered to and accepted by the CITY. 3. PERFORMANCE OF SERVICES ARTIST and its employees, associates or assistants shall perform all the services under this Contract in a timely, cost effective manner. 4. DATE FOR COMPLETION This Contract shall be completed 6 months from the date of execution. ARTIST understands and agrees that time is of the essence. All services are to be completed and delivered to CITY by the date for completion unless an extension of time, based upon good reasons presented by ARTIST, is approved in writing by CITY. 5. PAYMENT FOR SERVICES In consideration of the professional services to be performed by ARTIST under the terms of this Contract, CITY shall pay ARTIST for services actually performed a fee not to exceed $40,000.00 which shall constitute full compensation from the City to the Artist for all costs incurred in the creation of the Artwork, including, but not limited to fees, materials, labor of the Artist and the Artist's assistants, studio and operating costs applicable to this project, travel costs for the Artist to visit and research the Site, transportation of the Artwork to the Site, and any costs incurred by the Artist for installation of the Artwork at the Site. All services shall be performed to the reasonable satisfaction of CITY, and CITY shall not be liable for any payment under this Contract for services which are unsatisfactory and which have not been approved by CITY. The City shall have the sole responsibility for determining when the Artwork has reached completion. Payments shall be made as follows: A. Upon approval of written design concept: 10%; B. Upon review and approval of maquettes: 20%; C. Upon ordering of materials and payment request: 20%; D. Upon fabrication of the sculptures, and acceptance by CITY: 30%; E. Upon installation, and acceptance by CITY: Remaining 20%. - 2 - 6. INSTALLATION The ARTIST will coordinate all Site preparation, installation plans, and timetables with the City Engineer. 7 . WARRANTIES ARTIST warrants that: (a) the design and ARTWORK being commissioned is the original product of ARTIST's own creative efforts and is not the subject of an existing patent or copyright owned by any other person; and (b) unless otherwise stipulated, the ARTWORK is original, that it is an edition of one (1), and ARTIST shall not sell or reproduce the ARTWORK or design or allow others to do so without the prior written consent of CITY. ARTIST warrants that the execution and fabrication of the ARTWORK will be performed in a professional manner and that the ARTWORK, as fabricated and installed, will be free of defects in material and workmanship, including any defects consisting of "inherent vice" or qualities which cause or accelerate deterioration of the ARTWORK. The ART~ST shall guarantee and maintain the ARTWORK from faults of material and workmanship for a period of one year after the acceptance date. The warranties stated in this paragraph shall survive the termination of this Contract. 8. MAINTENANCE/CONSERVATION Upon completion and installation of the ARTWORK, ARTIST shall prepare and submit to CITY a written recommendation for maintenance of the ARTWORK, describing materials, procedures, and frequency. Repairs, restoration and/or conservation shall be the responsibility of CITY. CITY will make every effort to consult with ARTIST prior to performing maintenance or making repairs, however CITY reserves the right to perform maintenance or make repairs without consulting ARTIST. 9. THE FINISHED ARTWORK ARTIST's final design and all other work product (including the final ARTWORK itself) under this Contract shall become the property of the CITY, without restriction on future use, except as provided below. By execution of this Contract, and at no additional charge to CITY, ARTIST grants to the CITY a perpetual, irrevocable right to graphically depict, copy, reproduce, use and display the final ARTWORK for any non-commercial purpose whatsoever; for purposes of this limitation, any graphic depiction, copy, reproduction, use or display of the final ARTWORK intended to promote or benefit the CITY, its public services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by the CITY, shall be deemed a non-commercial purpose. Notwithstanding the above limitation, ARTIST agrees and understands that nothing in this paragraph shall affect or limit the CITY's absolute, unrestricted rights incidental to the CITY's full ownership of the final ARTWORK to alter, use, reproduce, copy, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in part, the final ARTWORK when the - 3 - CITY deems it necessary within its discretion, in order to otherwise exercise the CITY's powers and responsibility in regard to public works and improvements, in furtherance of the CITY's operations or for any other reason. ARTIST hereby acknowledges the rights of integrity and attribution conferred by Section 106A (a), paragraphs (2) and (3) of Title 17 of the U.S. Code, and any other rights of the same nature granted by federal, state or international laws, and of his own free will hereby waives such rights with respect to the City of Port Angeles' usage or use of the ARTWORK including but not limited to the right to maintain, remove or destroy the ARTWORK. 10. INDEMNITY ARTIST agrees to defend, indemnify and hold CITY, its officers, agents and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for: (a) any infringement of patent or copyright arising out of the services performed by ARTIST under this Contract regardless of whether or not ARTIST or CITY had knowledge of any existing patents or copyrights during the course of performance of this Contact; and (b) personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, that may arise out of or be occasioned by ARTIST's breach of any of the terms or provisions of this Contract, or by any negligent act or omission of ARTIST, its officers, agents, associates, employees or subconsultants, in the performance of this Contract. The indemnity for personal injury, property damage or other harm caused by ARTIST's contractual breach or negligence provided in (b) shall not apply to any liability resulting from the sole negligence of CITY, its officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both the ARTIST and CITY, responsibilities and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the State of Washington without waiving any defenses of the parties under Washington law. 11. NONDISCRIMINATION As a condition of this Contract, ARTIST covenants that ARTIST will take all necessary actions to insure that, in connection with any work under this Contract, ARTIST, his associates and subcontractors, will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex or handicap unrelated to job performance either directly, indirectly or through contractual or other arrangements. In this regard, ARTIST shall keep, retain and safeguard all records relating to this Contract or work performed hereunder for a minimum period of three (3) years from final Contract completion, with full access allowed to authorized representatives of the City of Port Angeles, upon request, for purposes of evaluating compliance with this and other provisions of the Contract. 12. CONTRACT PERSONAL This Contract provides for personal/professional services, involving the skill and creativity of ARTIST. Therefore, the ARTIST shall not assign this Contract, in whole or in part, without the prior written consent of CITY. -4- , \ 13. TERMINATION CITY may terminate this Contract, in whole or in part, for cause or the convenience of CITY, upon ten (10) days written notice to ARTIST with the understanding that all services being performed under this Contract shall cease upon the date specified in such notice. Upon notice of termination, ARTIST shall promptly discontinue all services affected (unless otherwise directed by the notice) and promptly deliver to CITY all data, drawings, specifications, calculations, reports, estimates, materials and completed or partially completed work produced by ARTIST under this Contract. ARTIST shall invoice CITY for all services completed and shall be compensated for all services performed prior to the date of the notice to terminate. 14. NOTICES All notices, communications, and reports required or permitted under this Contract shall be personally delivered or mailed to the respective parties by depositing same in the United States mail, postage prepaid, at the addresses shown below, unless and until either party is otherwise notified in writing by the other party, at the following addresses. Mailed notices shall be deemed communicated as of five (5) days after mailing. If intended for CITY, to: City of Port Angeles Attention: Richard Bonine Recreation Division P.O. Box 1150 \ 321 E. Fifth Street Port Angeles, Washington 98362-0217 .. If intended for ARTIST, to: Bob Stokes 118-112 E. Front, Upstairs Port Angeles, Washington 98362 15. INDEPENDENT CONTRACTOR In performing services under this Contract, the relationship between CITY and ARTIST is that of independent contractor, and CITY and ARTIST by the execution of this Contract do not change the independent status of ARTIST, ARTIST shall exercise independent judgment in performing his duties under this Contract and is solely responsible for setting working hours, scheduling or prioritizing the work flow and determining how the work is to be performed. No term or provision of this Contract or act of ARTIST in the performance of this Contract shall be construed as making ARTIST the agent, servant or employee of CITY, or making ARTIST or any of his employees eligible for the fringe benefits, such as retirement, insurance and worker's compensation, which CITY provides its employees. - 5 - . ' 16. GOVERNING LAW AND VENUE This Contract shall be governed by and construed in accordance with the provisions of the ordinances of the City and with the laws of the State of Washington, and applicable federal law. If legal action is necessary to enforce same, exclusive jurisdiction and venue shall lie in the Superior Court ofClallam County, Washington. 17. ENTIRE AGREEMENT The Contract embodies the complete agreement of the parties hereto, superseding all oral or written previous and contemporary agreements between the parties and relating to matters in this Contract, and except and otherwise provided herein cannot be modified without written agreement of the parties to be attached to and made a part of this Contract. EXECUTED this ~ -Y\ day of March, 2008 by the CITY and by ARTIST. CITY OF PORT ANGELES ARTIST By: ~ kiy.-d'-u-p._ Title: ~).., .J B. Attest: 8df1.lP,~ .LJ.atn1L Becky 1. Up , Cl Clerk I Approved as to form: IJ~ &,(~ ennis C. Dickson Senior Assistant City Attorney G:\Legal_Backup\AGREEMENTS&CONTRACTS\2007 Agrmts & Contracts\Stokes.Art on the Town.091207.doc February 2~; .~008 . , - 6- . " . . ~ 'I .f' ~ ~ !~~~~ii I," li~ ~G! ~ ., FRONT &~E liil I r I~ ~~ 1m l!!l 8 I I RAII..FWAD AYE. "....~~ ~'II' 818 South Peabody 8L DAft: :n:..JlN'DlBlBR.~ JL.n Port :....8 WA 888lI2 It. D r" 1Ur "D' "R" 10 ,... "1r C! ot.--/Mft\ ....lto.-..... - , s~~;.;f&.:~;:.1 FI~T &~ET ~ FRONT &~ET SITE PLAN FOR: ART SCULPTURE LAYOUT 'I"V'Ion~~